ABOVE: Donald Trump, photo public domain.
In an early signal his administration may seek to limit the impact the recent U.S. Supreme Court ruling against anti-LGBTQ discrimination, Donald Trump is promoting an effort from the U.S. Justice Department to protect an Idaho law barring transgender athletes from girls’ sports against a lawsuit.
Trump on Saturday retweeted an article on his administration’s statement of interest from the far-right website Breitbart News, which hailed the move in a headline as “Sports: Justice Department Rejects SCOTUS Transgender Rule.”
“President Donald Trump’s justice department is defending women’s sports from an Idaho lawsuit by transgender activists — and from the Supreme Court’s new pro-transgender rule,” writes Breitbart’s Neil Munro in first line of the article.
U.S. Attorney General William Barr announced in a statement Friday the Trump administration would intercede in the lawsuit against the Idaho law, known as House Bill 500 and the Fairness in Women’s Sports Act, to protect the statute on the basis that “allowing biological males to compete in all-female sports is fundamentally unfair to female athletes.”
“Under the Constitution, the Equal Protection Clause allows Idaho to recognize the physiological differences between the biological sexes in athletics,” Barr said. “Because of these differences, the Fairness Act’s limiting of certain athletic teams to biological females provides equal protection. This limitation is based on the same exact interest that allows the creation of sex-specific athletic teams in the first place — namely, the goal of ensuring that biological females have equal athletic opportunities.”
The Justice Department takes this position even though the Supreme Court ruling in Bostock v. Clayton County determined anti-transgender discrimination is a form of discrimination, thus prohibited in employment under Title VII of the Civil Rights Act of 1964. The logic of the decision applies to all laws against sex discrimination, including Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in schools and requires schools to offer equal opportunities boys and girls in athletics.
But in the 16-page statement of interest, Matthew Donnelly, an attorney with the Justice Department’s Civil Rights Division, chooses as his battleground the Equal Protection Clause.of the the Fourteenth Amendment.
Although the Equal Protection Clause is the primary basis of the American Civil Liberties Union’s challenge to the lawsuit, Donnelly rejects the idea the Idaho law violates the U.S. Constitution.
“The Equal Protection Clause does not require states to abandon their efforts to provide biological women with equal opportunity to compete for, and enjoy the life-long benefits that flow from, participation in school athletics in order to accommodate the team preferences of transgender athletes,” Donnelly writes. “Put differently, the Constitution does not require Idaho to provide the special treatment plaintiffs request, under which biological males are allowed to compete against biological females if and only if the biological males are transgender.”
Cited as precedent by Donnelly are decisions from the U.S. Ninth Circuit Court of Appeals in the 1980s rejecting pleas from male students to play on the girls’ volleyball teams at their schools because no boys’ team existed.
In one 1989 decision, the Ninth Circuit concluded “due to average physiological differences, males would displace females to a substantial extent if they were allowed to compete for positions on the volleyball team. Thus, athletic opportunities for women would be diminished.”
Despite the Supreme Court’s recent decision in Bostock case against anti-transgender discrimination, Donnelly flat-out denies it has any implications for Idaho law, arguing the ruling “said nothing about and did not consider anything about the Constitution.”
Further, Donnelly points to language in the Bostock decision asserting justices “do not purport to address bathrooms, locker rooms, or anything else of the kind.”
Donnelly also makes the case, on a narrow reading, the Idaho law doesn’t discriminate on the basis of transgender status, therefore the Bostock decision has no application to the statute.
‘“Nothing in the Fairness Act discriminates on the basis of transgender status, so even assuming arguendo that Bostock had any relevance in a constitutional case, it would not help plaintiffs,” Donnelly writes.
The Idaho law explicitly requires college and public schools sports teams to be designed as male, female and co-ed — and any female athletic team “shall not be open to students of the male sex.”
In the event of a dispute, a student may be required to produce a physician’s statement to affirm her biological sex based on reproductive anatomy, normal endogenously produced levels of testosterone and an analysis of the student’s genetic makeup. That would effectively ban transgender athletes from participating in sports.
The Justice Department’s statement of interest isn’t the first time the Trump administration has interceded to assist in efforts barring transgender athletes from school sports. In response to a case from girls in Connecticut who were beaten in a track event by transgender athletes, the Department of Education participation the participation of transgender girls’ in the event violated Title IX.
The Trump administration hasn’t yet announced anything on its plan to implement the Bostock ruling, which would have implication not only in employment, but health care, housing and education. The White House, however, has signaled the Justice Department would lead an effort to bring its agencies in compliance. DOJ hasn’t responded to repeated requests from the Washington Blade to comment on that process.
The ACLU filed its lawsuit against the Idaho law, which Gov. Brad Little quietly signed during the height of the coronavirus crisis, in April on behalf Lindsay Hecox, a 19-year-old woman attending Boise State University who seeks to participate in the intercollegiate track and cross-country teams at the school. Subsequently, LGBTQ advocates — along with LGBTQ athletes like Billie Jean King and Megan Rapinoe — called on the National Collegiate Athletic Association to nix sporting events in Idaho in protest of the anti-trans law.
It should be noted Idaho High School Activities Association already had in its rules prior to the anti-trans law a requirement transgender girls “complete one year of hormone treatment related to the gender transition before competing on a girls team.
Chase Strangio, deputy director for trans justice at the ACLU’s LGBT & HIV project, said in response to the Trump administration’s statement of interest the Justice Department is adopting tired arguments from anti-trans advocates.
“Trans women are women — including our client Lindsay,” Strangio said. “Those who pushed this anti-trans bill and others like it say it is about protecting women. Billie Jean King, Megan Rapinoe, Sue Bird and hundreds of other athletes at all levels disagree. Discrimination against women — including women who are trans — is discrimination. DOJ’s arguments will fail here just as DOJ lost its defense of anti-transgender discrimination this week in the Supreme Court.”
Hailing the Trump administration’s statement of interest was Christiana Holcomb, legal counsel for anti-LGBTQ law firm Alliance Defending Freedom, which has sought to intervene in the lawsuit to argue in favor of the Idaho law.
“The DOJ correctly points out that the Constitution’s ‘Equal Protection Clause allows Idaho to recognize the average physiological differences between the biological sexes in athletics’ and to refuse to give special treatment to males who demand access to girls’ teams,” Holcomb said in a statement. “By protecting all-girls’ sports, the state is ensuring that female athletes continue to enjoy equal opportunities to compete for and enjoy the life-long benefits that flow from school athletics. That’s good news for our clients and all female athletes who simply seek fairness in sports.”
